Five Final Rules Issued with FAC 2005-88

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council have issued Federal Acquisition Circular 2005-88, which contains five final rules amending the Federal Acquisition Regulation: Item I—High Global Warming Potential Hydrofluorocarbons (FAR Case 2014-026); Item II—Simplified Acquisition Threshold for Overseas Acquisitions in Support of Humanitarian or Peacekeeping Operations (FAR Case 2015-020); Item III—Basic Safeguarding of Contractor Information Systems (FAR Case 2011-020); and Item IV—Improvement in Design-Build Construction Process (FAR Case 2015-018). The Item V final rule makes needed editorial changes to FAR 1.106. The FAC also contains a Small Entity Compliance Guide, which indicates a regulatory flexibility analysis was prepared for all five rules. A full listing of the regulations impacted by the rules, as well as the effective dates, appears in the FAC regulation table below. For the text of FAC 2005-88, see ¶70,002.190.

Hydrofluorocarbons

The FAR Case 2014-026 final rule amends the Federal Acquisition Regulation to implement Executive branch policy in the President’s Climate Action Plan to procure, when feasible, alternatives to high global warming potential hydrofluorocarbons. To implement this policy, the rule adds at FAR 2.101 definitions for “Global warming potential,” “High global warming potential hydrofluorocarbons,” “Hydrofluorocarbons,” “Manufactured end product,” and “Products.” The rule also revises FAR Subpart 23.8, which sets forth policies (FAR 23.802) and procedures (FAR 23.803) for the acquisition of items that contain, use, or are manufactured with ozone-depleting substances, or contain or use high global warming potential hydrofluorocarbons. Revised FAR 23.804 amends the prescriptions for FAR 52.223-11, Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons, and FAR 52.223-12, Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners, and prescribes two new clauses, FAR 52.223-20, Aerosols, and FAR 52.223-21, Foams. The rule also amends FAR 7.103, Agency-head responsibilities, to require compliance with the policy in FAR 11.002(d) for describing agency needs. In addition, the rule makes corresponding and technical changes to FAR 1.106, FAR 23.000, FAR 25.1101, FAR 52.212-5, and FAR 52.213-4. In response to comments on the proposed rule (¶70,006.299), the final rule clarifies the definition of “high global warming potential hydrofluorocarbons” to make it specific to a particular end use. The final rule also adds in FAR 52.223-20 and FAR 52.223-21 environmental, technical, and economic factors to consider when determining feasibility. This rule will allow agencies to better meet the greenhouse gas emission reduction goals and reporting requirements of the Executive Order on Planning for Sustainability in the Next Decade.

Simplified Acquisition Threshold

The final rule in FAR Case 2015-020 implements 41 USC 153, which establishes a higher simplified acquisition threshold for overseas acquisitions in support of humanitarian or peacekeeping operations. FAR Case 2003-022, issued as an interim rule in FAC 2001-20 and finalized in FAC 2001-26, revised the definition for SAT in FAR 2.101, but inadvertently deleted the reference to overseas humanitarian or peacekeeping missions and the requisite doubling of the SAT in those circumstances. Accordingly, the rule reinstates the increased SAT for overseas acquisitions for peacekeeping or humanitarian operations. Conforming changes were made in FAR 4.1102, FAR 13.003, FAR 18.204, FAR 18.205, FAR 19.203, and FAR 19.502-2. There were no changes to the proposed rule (¶70,006.307).

Contractor Information Systems

The final rule associated with FAR Case 2011-020 adds a new subpart and contract clause for the basic safeguarding of contractor information systems that process, store, or transmit federal contract information. Specifically, the rule adds new FAR Subpart 4.19, Basic Safeguarding of Covered Contractor Information Systems, which sets forth definitions at 4.1901 for “Covered contractor information system,” “Federal contract information,” “Information,” “Information system,” and “Safeguarding.” FAR 4.1902 specifies that the subpart applies to all acquisitions, including acquisitions of commercial items other than commercially available off-the-shelf items, when a contractor’s information system may contain federal contract information. FAR 4.1903 prescribes a new contract clause, FAR 52.204-21, Basic Safeguarding of Covered Contractor Information Systems. The clause does not relieve the contractor of any other specific safeguarding requirement specified by the government as it relates to covered contractor information systems generally or other federal requirements for safeguarding controlled unclassified information. Systems that contain classified information or CUI, such as personally identifiable information, require more than the basic level of protection. The rule maDFkes corresponding amendments at FAR 7.105, FAR 12.301, FAR 52.213-4, and FAR 52.244-6. The final rule made a number of significant changes to the proposed rule (¶70,006.270), including:

  • providing for safeguarding the contractor information system, rather than specific information contained in the system;
  • adding the term “covered” to “contractor information system” to indicate that the policy applies only to contractor information systems that contain federal contract information;
  • deleting the safeguarding requirements and procedures in the clause that relate to transmitting electronic information, transmitting voice and fax information, and information transfer limitations; and
  • making the final rule applicable below the simplified acquisition threshold, but not to the acquisition of COTS items.

Design-Build Construction

The FAR Case 2015-018 final rule amends FAR 36.303-1 to implement section 814 of the Carl Levin and Howard P. ‘Buck’ McKeon National Defense Authorization Act for Fiscal Year 2015 (PL 113-291), which requires the head of the contracting activity to approve any determinations to select more than five offerors to submit phase-two proposals for a two-phase design-build construction acquisition that is valued at greater than $4 million. The approval level is delegable no lower than the senior contracting official within the contracting activity. The final rule made one change to the proposed rule (¶70,006.308) to specify the approval must be documented in the contract file.